Dyspeptic retired Marine wife/tech wench attempts to enlighten the great unwashed of the blogosphere while dodging snarky commentary from the local knavery.

May 21, 2013

Does Empathy Lead to Injustice and Discrimination?

During his first term, Obama talked a lot about the value of judicial empathy, and of empathy in general:

In 2008, Karina Encarnacion, an eight year-old girl from Missouri, wrote to President-elect Barack Obama with some advice about what kind of dog he should get for his daughters. She also suggested that he enforce recycling and ban unnecessary wars. Obama wrote to thank her, and offered some advice of his own: “If you don’t already know what it means, I want you to look up the word ‘empathy’ in the dictionary. I believe we don’t have enough empathy in our world today, and it is up to your generation to change that.”

This wasn’t the first time Obama had spoken up for empathy. Two years earlier, in a commencement address at Xavier University, he discussed the importance of being able “to see the world through the eyes of those who are different from us—the child who’s hungry, the steelworker who’s been laid off, the family who lost the entire life they built together when the storm came to town.” He went on, “When you think like this—when you choose to broaden your ambit of concern and empathize with the plight of others, whether they are close friends or distant strangers—it becomes harder not to act, harder not to help.”

Is this really true, though? The connection between empathy, sympathy (fellow feeling), and willingness to help others doesn't actually work the way the President claims it does. Empathy, it turns out, is not broad based at all, but narrow and specific. People are more willing to help individuals than groups:

The key to engaging empathy is what has been called “the identifiable victim effect.” As the economist Thomas Schelling, writing forty-five years ago, mordantly observed, “Let a six-year-old girl with brown hair need thousands of dollars for an operation that will prolong her life until Christmas, and the post office will be swamped with nickels and dimes to save her. But let it be reported that without a sales tax the hospital facilities of Massachusetts will deteriorate and cause a barely perceptible increase in preventable deaths—not many will drop a tear or reach for their checkbooks.”

You can see the effect in the lab. The psychologists Tehila Kogut and Ilana Ritov asked some subjects how much money they would give to help develop a drug that would save the life of one child, and asked others how much they would give to save eight children. The answers were about the same. But when Kogut and Ritov told a third group a child’s name and age, and showed her picture, the donations shot up—now there were far more to the one than to the eight.

The number of victims hardly matters—there is little psychological difference between hearing about the suffering of five thousand and that of five hundred thousand. Imagine reading that two thousand people just died in an earthquake in a remote country, and then discovering that the actual number of deaths was twenty thousand. Do you now feel ten times worse? To the extent that we can recognize the numbers as significant, it’s because of reason, not empathy.

In the broader context of humanitarianism, as critics like Linda Polman have pointed out, the empathetic reflex can lead us astray. When the perpetrators of violence profit from aid—as in the “taxes” that warlords often demand from international relief agencies—they are actually given an incentive to commit further atrocities. It is similar to the practice of some parents in India who mutilate their children at birth in order to make them more effective beggars. The children’s debilities tug at our hearts, but a more dispassionate analysis of the situation is necessary if we are going to do anything meaningful to prevent them.

This is why politicians seek to personalize public policy proposals; we get the Lily Ledbetter Act, or Megan's Law rather than the Equal Pay for Women Act or the Sex Offender Registry Act. The deliberate invocation of a highly personalized narrative effectively short circuits critical inquiry and skepticism. What do you mean, you aren't sure an official list of registered sex offenders is a good idea? Don't you want to prevent what happened to little Megan from EVER HAPPENING AGAIN?

An Obama judge will not ask, “Does the ruling I’m about to make fit neatly into the universe of legal concepts?” but rather, “Is the ruling I’m about to make attentive to the needs of those who have fared badly in the legislative process because no lobbyists spoke for their interests?” Obama’s critics object that this gets things backwards. Rather than reasoning from legal principles to results, an Obama judge will begin with the result he or she desires and then figure out how to get there by what only looks like legal reasoning.

This is the answer to Dahlia Lithwick’s question, what’s wrong with empathy? It may be a fine quality to have but, say the anti-empathists, it’s not law, and if it is made law’s content, law will have lost its integrity and become an extension of politics. Obama’s champions will reply, that’s what law always has been, and with Obama’s election there is at least a chance that the politics law enacts will favor the dispossessed rather than the powerful and the affluent. No, says Walter Williams at myrtlebeachonline: “The status of a person appearing before the court should have absolutely nothing to do with the rendering of decisions.”

Or as the old saying goes, justice is - or ought to be - blind. For a guy who keeps saying that America should be a place where everyone plays by the same set of rules, a jurisprudence that allows easily manipulated emotions to place a thumb on the scales of justice - whose goal is more sympathy than justice - seems an odd prescription.

Posted by Cassandra at May 21, 2013 08:28 AM

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Are we to be a nation of laws or a nation of people? What set us apart for so long from other nations was that we were a nation of laws, not a nation of people. That provided a framework for individual freedoms and especially property rights. Such a framework is necessary to promote what used to be two great intertwining strengths of this country--democracy and capitalism. Both rely on the Rule of Law to flourish, and thus they both reinforce each other.

Changing the country over from the rule of law to the rule of people imperils both strengths, much to the detriment of our country.

So, I'm still not finished thinking it through, but my general problem starts with the institution of the jury. What's it there to do?

You get different answers about that question, but it seems to me that on any reading the jury has a function that is at least partially about bringing something like empathy into the process. It may be sympathy rather than empathy, if you want to make the distinction. Still, the usual answers about the jury are:

1) That it is there to rule on whether the law has been violated, and no more. But this could be done better by those trained in the law. Why not have the judge do it, or a small panel of judges or lawyers? Why individual citizens who are of the same class and kind as the person on trial? Why is it important that this determination be made by those, in other words, who have the same relationship to the law as the accused?

The answer has to do with who we trust to sit in judgment of us. If we were accused of a crime -- falsely, I assume, for most of this company -- we wouldn't want to be judged by a distant and dispassionate elite on technical grounds. We would want people who could understand us in between ourselves and the merciless law. Something like empathy is built into this process.

2) Some (including me) add to this first power of the jury a general idea that the jury exists partially to refuse to convict when the law cannot produce justice. This can take the form of jury nullification of unjust laws, or it can take the form of refusing to apply the law to a highly unusual case to which the law technically applies but for which it was not written.

If a law offends our sense of justice, though, it may be on emotional as well as rational grounds. It could be the law was improperly passed, or is obviously unconstitutional even though the courts have refused to bar its enforcement. But it might also simply be manifestly unjust, in some way that offends the soul and cries out to heaven. (In other words, we might refuse the law on the same terms that we say a soldier has a duty to refuse certain orders.)

That latter case is most likely to have something to do with empathy. A law that Jews must be rounded up for shipment to some camp, and those who help them escape must be shot along with their families -- say such a law was passed according to the most precise forms, and the Constitution amended to support it. The law says, and really does say, that this must be done. Jim and Mary and their children now stand before you, the jury, being plainly guilty of helping Jews. You must assign them to the firing squad, or not.

The grounds for rejecting the law are not legal, but grow out of our moral feelings. Empathy is important here.

So I think it's reasonable to be concerned that there are places where empathy may lead us astray, and to adjust for that. But I also think that even the rule of law cannot be just without being strongly informed, in the right places, with empathy. I've offered just one example that strikes me as particularly clear, but I think there are many others: in fact, I think it's needed throughout the process, from crafting the law to applying it, in the legislator and the judge as well as the jury. The question has to be about its proper limits, and about its proper object: for example, should we be empathetic only to the guilty, or also to his victims, or also to his potential (and therefore not actual!) future victims?

To me, the reason for the jury is to balance the scales between the relatively powerless individual and the relatively powerfull state. The jury, in a sense, declares that if they were the ones sitting in the hot seat, that they would consider the outcome as a just one.

"Given the state's case and process, would I view my own conviction as above board?"

This is highly empathetic. And justly so.

But as I said, empathy is double edged.

It can also be manipulated with a long list of sob stories to, in effect, argue that while the person did steal the victims wallet at gunpoint, they shouldn't be held accountable for it. It's someone else's (usually society's) fault.

This is also highly empathetic, but instead is wielded as a weapon against justice.

We're not going to find a system in which we can put either our hearts or our minds on the shelf permanently. Our principles should supply rigor to our choices, while our hearts prick our conscience if our principles lead us to an intolerable concrete result. If we get this backwards, we'll ditch the principles whenever they result in uncomfortable feelings (regardless of justice), and we'll ditch the personal obligation whenever it conflicts with a rigid rule (regardless of love).

I also think it's a common mistake to imagine we can be guided by exactly the same principles in dealing with masses of strangers as we are in dealing with individual humans with whom we are in intimate contact. For strangers, we need rules that take into account our inability to get to know in detail each individual's particular situation and needs.

For strangers, we need rules that take into account our inability to get to know in detail each individual's particular situation and needs.

Yes. Someone I read recently (I've really got to start taking notes) pointed out that (and I'm really short-handing this) our thoughts/feelings about giving, understanding, helping, compassion arose from small groups, where we knew the actors involved and would eventually realize, for example, that Bob, who tugged at our heartstrings with his bad luck, had an awful lot of bad luck - and it all seemed to start when he had one glass too many of his own home brew.

I think this also speaks to the problem with the idea that a jurist who should favor the dispossessed with no lobbyist. It assumes that everyone in a particular group has been done wrong. That is very different than considering whether a particular person's individual circumstances might be worth considering in the judicial process - whether that consideration leads to greater or lesser leniency.

The traditional role of the jury is to decide the facts. The traditional role of the judge (when there is a jury) is to rule on the law. In modern jurisprudence, the judge instructs the jury on the law (as agreed upon by both parties to the dispute, i.e., by the prosecutor & defense attorney in a criminal trial, or by the plaintiff's attorney and the defense's attorney in a civil trial), and the jury applies the law (as laid out by the judge) to the facts as determined by the jury.

So, to summarize, the jury is the factfinder.

Appeals to higher courts are appeals on the law, not on the facts. Once the jury has decided the facts, they're pretty much cast in concrete. The only time they're not is when there is no basis in the evidence to support the fact-and it doesn't take much evidence to support a fact. But whether or not there is enough evidence to support a particular finding of fact is actually a question of law, and thus appealable.

Sentencing is usually up to the judge, but some states have jury sentencing. I don't know which ones do, other than Virginia. I've seen a jury convict a guy of a felony and then assess a $100 fine. Obviously they didn't consider the matter to be very serious once all the facts were presented at trial. For jurisdictions where the judge does the sentencing, I've seen juries return a verdict of Not Guilty even with contrary facts in evidence because they felt that the mandatory sentence attached to the crime didn't match the circumstances.

The part about juries I like the least is the idea, in New York at least, is that a juror can only be impartial if they've never heard of the case and have no friends or acquaintances who're associated in any way with the prosecutor or defendant. I find that a strange attitude. In Virginia, there's a further question asked: Despite your acquaintance with so and so, can you hear the evidence presented and render an impartial verdict? (To be fair, that's also supposed to be the law in New York, but it's seldom handled that way.)

If you want further info on how actual juries decide, and in particular how different measurable characteristics of jurors affect both their verdicts and lengths of sentences, there are a whole host of treatises and publications out there. In general, folks who externalize events (as opposed to internalizing events, or what some of us know of as taking responsibility for our actions, instead of blaming external influences) are less likely to render a Guilty verdict and/or are more likely to render lighter sentences. This correlation extends to people who vote Democrat, are younger, earn less, etc.

Somewhere along the line we lost track of the difference between a finding that someone has broken a law and the right punishment.

Whether or not someone has broken the law is a separate question from how they should be punished (though some mandatory sentencing laws muddle what ought to be a clear distinction).

A defendant has several chances to appeal to empathy/sympathy. The first would be raising a defense during trial. If he is charged with murder, he might raise the defense that he acted in self defense or defense of others.

He would, of course, still have killed someone. That's a fact. But the law often has built in defenses that acknowledge you committed a certain act that's normally proscribed, but creates an exception to the general rule forbidding the act.

If a person has broken the law and raises no legal defense, empathy should come into play at sentencing (hopefully based on some evidence of mitigating circumstances that don't rise to the level of a legally recognized defense). For instance, the defendant did break the law but the circumstances were such that the judge imposes the lightest possible sentence (or even suspends the sentence).

But the determination of whether the law was broken or not shouldn't be affected by empathy.

Well, would "empathy" be the right word if the determination of the jury is that the defendant was guilty by the letter of the law, but not the spirit (or that they were guilty by the letter of the law, but the law was unjust)?

If a defendant cuts down a tree in his yard, and it's later found that the tree contained the nest of an endangered species, he may be guilty of having broken the Endangered Species Act. But if the jury believes that he had no intent and did not know the nest was there, should they find him guilty of violating the law? Because formation of criminal intent IS a basis of a guilty verdict. And perhaps that's a bad example, but it's what came immediately to mind.

The case I was thinking of is where the person may be dead-to-rights guilty, but the police have lied to bolster their case. For example, say the police noticed a distinguishing tattoo after the arrest, but then claimed that the tattoo is how they identified the suspect *for* the arrest.

You may not be able to prove perjury, but it is highly unlikely that the officer could have seen such a tattoo given the distance, size, location, etc.

If it were you in the defendent's chair, would you want your conviction secured, based upon false testimony by the state?

As a "finder of fact" you find that the accused is guilty of their crime, but you also find that the state is also guilty of abusing its power.

That's probably the worst example you could use, because the vast majority of *Federal* laws don't require intent. In other words, simple actions, without any "evil" intent, is a violation of most of the Federal laws passed within the last two decades. Felonies as well as misdemeanors.

Howdy Grim,
The jury system is a fundamental part of moving away from a nation that is ruled by people (whoever is in charge, originally the crown and judges appointed by the crown, acting on his behalf) towards a nation governed by law.

While is is trendy to focus on jury nullification, the primary purpose of the jury is to ensure that 'game' is not rigged by a judge who predetermines the facts and/or outcome, ala modern Russia or China.

I've sat on three juries (twice it was the military equivalent), and I assure you that a jury is not necessarily empathetic towards the accused. In each instance, I observed fellow jurors that were very much focused on determining whether the prosecution met the standard of proof for conviction, as specifically explained by the judge (fact finding). In the military those same jurors (members of the Courts Martial) then determine what, if any, punishment to impose.

That set of answers is a product of mid-century America. The idea that the law is essentially just, and that dispassionate finding of fact is all that is necessary to create justice, is an artifact of a special moment of great faith in the law and our particular civilization. That hasn't normally been the case, and in fact I don't think that kind of faith in our system is still warranted even today in certain Federal cases. The law is being created (especially in terms of executive actions) and applied (where our Justice department has a direct hand and is politically interested) in ways that make necessary more than finding the facts. This is the traditional role of the jury.

The reason the jury exists in our system is that the Vikings had it as a hedge of free men against the powerful, and the Anglo-Norman knighthood insisted on it in the Magna Carta (but only for themselves, not for the common folk; those inherited it over time, as the privileges of knighthood became extended to all free men in England).

It was always there to do more than simply find facts, so the judge can apply the law to them. It was also to stand as a hedge against concentration of power in the law-making classes. The law, if it has been hijacked for political or personal gain, can be a tool of oppression as much as it can be a tool of anything else. The jury exists as a hedge against that. We trust it to serve that purpose because we think other citizens will see the way the law is being employed against a fellow citizen the same way we would.

It's not the function of the jury to feel bad for the criminal, but it is part of the function of the jury to decide if the alleged criminal is being treated in a way that is just -- quite apart from the question of whether the law has been broken, as interpreted as instructed by the judge. In a case where the law is usually brought in a more-or-less fair way, there may be so little call for performing that specific function that it can seem to fall by the wayside. But the corrupting effect of power is eternal, and we should not expect our moment of stability to last forever.

I don't think I have any real deficit of empathy. As a child (and even now as an adult) I have never been able to sit through movie scenes where people or animals are being hurt. I can't watch a boxing match because every blow makes me wince. So a lack of feeling isn't the issue - if anything, I have to actively try to throttle back my natural instinct to feel other people's pain.

But I distrust empathy for several reasons:

1. Most people (I'm not one of them, but I've seen this repeatedly over a lifetime of observation) find it easier to empathize with people and experiences that are familiar to them. We're more sympathetic to people like us and pain we've personally experienced. And we have a far harder time empathizing with people who *aren't* like us, or pain we've never felt.

In this context, unchecked empathy leads to bias. We go easier on people like us (or people whose problems we've struggled with ourselves). And we're harder on people we don't understand for whatever reason. That's a big problem.

The law can't work that way - as a structure, it must encourage us to minimize bias, not amplify it.

2. Empathy is too easily manipulated. Too much feeling clouds objective judgment and critical thinking, and cynical or unscrupulous people rely on that to escape the just consequences of their misdeeds.

Charity, as I understand it, is a broader concept that doesn't rely quite so much on whether we personally identify with others or not. It's a general policy towards others, rather than a specific emotional reaction to individuals.

I much prefer arriving at a decision first as to what is right or wrong, *then* taking feelings into account. I find that a disturbingly large number of people make decisions the other way 'round.